1. The applicant, Mohsin Omar Jaffer, is the grandson of the deceased, Sharif Gafar Ahmed Mohamed, and the son of the late Omar Jaffer al Beity. The applicant claims that he is named in the deceased's will (or codicil to the will) as a beneficiary and that he is an administrator of the deceased's estate in Uganda pursuant to letters of administration issued by the High Court of Uganda in Mbale, in Administration Cause No 093 of 2017.
2. The applicant contends in the said application that both executors in this succession matter are deceased. The last surviving executor, Ahmed Jaffer, died on 22nd July 2025. Following the demise of the said executor, the grant became useless and inoperative. The applicant wishes to be made a party to the proceedings so that he can respond to the application filed by Mariam Ahmed Hassan, vide which she seeks to be appointed as the sole administrator of the deceased's estate. He further contends that the summons for revocation of the grant filed by Mariam lacks merit, as she does not have locus standi to do so.
3. On her part, Mariam Ahmed Hassan (hereafter “Mariam”) deposed to a replying affidavit sworn on 12th November 2025, in which she stated that Mohsin Omar Jaffer was not a beneficiary of the estate of the deceased. She averred that the only beneficiaries listed in the certificate of confirmation of the Grant of Probate were herself (Mariam Jaffer Hassan), Mohamed Jaffer Ahmed, Ali Jaffer Ahmed, Ahmed Jaffer Ahmed, Fatma Jaffer Ahmed, Khadija Jaffer Ahmed, Aliya Jaffer Ahmed and Fahlum Jaffer Ahmed. She denied that there was a codicil, stating that the alleged codicil had never been produced, proved, or adopted by the Court and did not form part of the confirmed grant issued on 3rd December 2014.
4. Mariam supported the Notice of Motion dated 27th October 2025, by which Alwiya Jaffer Ahmed and Khadija Jaffer Ahmed sought to be made interested parties. She deposed that, as daughters of the deceased, Alwiya and Khadija could be made interested parties in these proceedings. Mariam further deposed that, as the widow of the deceased, she ranked in priority to the other beneficiaries under section 66 of the Law of Succession Act. She contended that the beneficiaries' consent to the Summons for revocation of the grant was unnecessary, as revocation was a matter of law.
5. There was a further joinder application dated 24th October 2025 seeking to add Swabra Ali Jaffer as an interested party. The application was not opposed and was allowed on 25th November 2025. Similarly, the application dated 27th October 2025 seeking to add Alwiya Jaffer Ahmed and Khadija Jaffer Ahmed as interested parties was allowed by consent. Thus, at present, the only joinder application pending determination is that of Mohsin Omar Jaffer.
6. The application by Mohsin Omar Jaffer, dated 17th October 2025, was canvassed through written and oral submissions. The submissions of Mr Mohsin, filed by his advocates, Oluga & Co. Advocates, are dated 17th November 2025. His counsel averred that there was a codicil to the deceased's will naming Mohsin as a beneficiary of the estate in place of his father. It was contended that the codicil was recognised as valid under Islamic Law by the Kadhi's Court, Malindi, in Malindi Succession Cause No 3 of 2018. Counsel submitted that the estate of Mohsin's father was closely intertwined with that of the deceased and that his input would be necessary in administering the deceased's estate.
7. Counsel relied on the case of Kibiwott v Bartocho & another [2025] KEHC 4725 (KLR) and prayed that the Court allow the application.
8. On the other hand, the advocates for Mariam Ahmed Hassan, Fathi Ali & Co. Advocates, filed written submissions dated 20th November 2025. The said counsel identified the issues for determination as follows:
i. Whether the applicant had standing to seek to be joined as an interested party;
ii. Whether the revocation of the grant entitles a non-beneficiary to be added as an interested party;
iii. Whether the codicil confers any enforceable rights to the applicant; and
iv. Whether the foreign letters of administration confer any automatic recognizable rights over a Kenyan estate.
9. Regarding the issue of locus, it was urged that the certificate of confirmation of grant dated 3rd December 2014 conclusively identified the beneficiary of the estate of the deceased. It was contended that the name of the applicant, Mohsin, did not appear nor had he been recognized at any stage of the proceedings, relying on the case of the In re Estate of M’mwongo Kichiu (Deceased) [2025] KEHC 2958 (KLR), counsel for Mariam submitted that since Mohsin lacked locus, his application was defective.
10. Counsel for Mariam submitted that revocation of the grant on account of the fact that the same had become useless and inoperative does not reopen the estate to new entrants. In support of the said contention, counsel relied on the case of IN THE MATTER OF THE ESTATE OF MWANGI MUGWE ALIAS ELIEZA NGWARE (DECEASED) [2003] KEHC 872 (KLR), where it was held that revocation under section 76 (e) of the Law of Succession Act was to facilitate the substitution of an administrator, not to reopen the estate to new parties or new claims.
11. It was submitted that Mohsin had no demonstrable interest in the estate and therefore could not be added, as he was not a beneficiary, could not claim dependency under section 29 of the Law of Succession Act, nor was he a creditor or had any other legal claim. Counsel urged that a person with a mere emotional, historical, or lineage-based interest was not an interested party under Kenyan law.
12. It was urged that the application was an abuse of the Court process. Counsel contended that just as in Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd [2014]eKLR, the applicant was misusing the Court process for ulterior means. Counsel thus urged that the application for joinder as an interested party be dismissed.
13. I have considered the Notice of Motion application dated 17th October 2025, the responses thereto, and the written and oral submissions of the parties. The issue I must determine is whether Mohsin Omar Jaffer, the son of Omar Jaffer al Beity, can be added to these proceedings as an interested party, or whether the application he filed lacks merit and should be dismissed for want of merit and as an abuse of the process of the court. To make that determination, I must set out the factual background of this matter.
14. The deceased died on 2nd July 2002 at the Aga Khan Hospital. At the time of his death, he had a will dated 25th November 1986. The will appointed his two sons, Mohamed Jaffer and Omar Jaffer, as executors. The will named the following beneficiaries: his brother, Sharif Alwil bin Ahmed; his sisters, Fatma Binti Ahmed and Rukiya Binti Ahmed; his 3 wives, Shife Binti Ali Jaffer, Barka Binti Mubarak Baasbah Batahaf, and Mariam Ahmed Hassan; and his children, Fatma Binti Jaffer, Kanina Jaffer, Mohamed Sharif Jaffar, Omar Sharif Jaffer, Ali Sharif Jaffer, Ahmed Sharif Jaffer, Khadija Binti Jaffer, Fadhlum Binti Jaffer and Alwiya Binti Jaffer. The will created a Wakf for the benefit of the Sharif Mosque in Mbale, Uganda.
15. Petition for grant of probate of the written will of the deceased was filed in this Court. Upon the will being proved, the probate of the will of the deceased was issued to Ahmed Jaffer and Ali Jaffer Ahmed of P. O. Box 84410, Mombasa. The probate of the will was confirmed on the said date. The beneficiaries were named as Mariam Jaffer Ahmed, Mohamed Jaffer Ahmed, Ali Jaffer Ahmed, Ahmed Jaffer Ahmed, Fatma Jaffer Ahmed, Khadija Jaffer Ahmed, Alwiya Jaffer Ahmed and Fadhlum Jaffer Ahmed.
16. It is not in dispute that Mohsin is the son of Omar Jaffer and that Omar Jaffer predeceased his father (the deceased herein). According to the will of the deceased, all the residue of the deceased's property (after providing for the brother, 2 sisters, and the Wakf for Sharif Mosque in Mbale) was to go to his 3 wives, Shife Binti Ali Jaffer, Barka Binti Mubarak Baasbah Batahaf, and Mariam Ahmed Hassan; and his children, Fatma Binti Jaffer, Kanina Jaffer, Mohamed Sharif Jaffar, Omar Sharif Jaffer, Ali Sharif Jaffer, Ahmed Sharif Jaffer, Khadija Binti Jaffer, Fadhlum Binti Jaffer and Alwiya Binti Jaffer and be distributed to them according to Islamic Sharia.
17. The deceased person was a Muslim. Under Section 2(3) of the Law of Succession Act, the law governing the devolution of his estate is the Muslim law.
18. With the foregoing background, can Mohsin be added as an interested party to these proceedings? The test for joinder of an interested party was settled by the Supreme Court of Kenya in the case of Francis Karioko Muruatetu & another v Republic & 5 others [2016] eKLR. The Court outlined the test as being:
1. Whether the person seeking to be joined has a personal interest or stake in the matter. Was the alleged interest clearly identifiable, proximate enough, and not merely peripheral? and
2. What prejudice would he suffer if there were non-joinder?
19. Although the above test is more applicable to constitutional matters, it still guides succession proceedings mutatis mutandis. In this case, Mohsin is the son of a named beneficiary of the deceased’s estate, entitled to a share under Islamic law. In my view, his father’s stake is clearly identifiable, sufficiently proximate, and not merely peripheral.
20. Regarding prejudice, it is my view that the beneficiaries of the estate of Omar Jaffer may lose whatever entitlements they are supposed to receive under the will or the alleged codicil if the applicant is not added. The prejudice, in my view, is real, clear and present. That being the case, it would be in the interests of justice to add him so that he can represent his family’s interests. Whether the certificate of Confirmation of Grant dated 3rd December 2014 precludes the family of Omar Jaffer, or whether there was a codicil to the will that gave Mohsin an interest in the estate of the deceased, are issues that can be ventilated before the Family Court, and a just decision, that will no doubt be rendered, will accord with the ethos of justice under Islamic law. But to make his case, Mohsin must first be at the table where the deceased's unadministered assets and their fate are being considered.
21. Further, I must add that ordinarily a child can inherit from his grandfather where the father is deceased. I am guided by the decision of Musyoka, J in the case of In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR) where the learned judge stated as follows:-
“Under Part V, grandchildren have not right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”
22. What the foregoing demonstrates is that the application by the proposed interested party is not idle. It certainly has merit. It is not an abuse of the Court process as submitted by counsel for Mariam. In the circumstances, I allow the Notice of Motion dated 17th October 2025 as prayed. As a result, Mohsin Omar Jaffer is hereby added to these proceedings as an interested party.
23. On costs, I order that each party shall bear its own costs of the application.
24. It is so ordered.
Dated and signed in Nairobi this 15th day of April 2026. Delivered virtually through Microsoft TEAMS.
2. The applicant contends in the said application that both executors in this succession matter are deceased. The last surviving executor, Ahmed Jaffer, died on 22nd July 2025. Following the demise of the said executor, the grant became useless and inoperative. The applicant wishes to be made a party to the proceedings so that he can respond to the application filed by Mariam Ahmed Hassan, vide which she seeks to be appointed as the sole administrator of the deceased's estate. He further contends that the summons for revocation of the grant filed by Mariam lacks merit, as she does not have locus standi to do so.
3. On her part, Mariam Ahmed Hassan (hereafter “Mariam”) deposed to a replying affidavit sworn on 12th November 2025, in which she stated that Mohsin Omar Jaffer was not a beneficiary of the estate of the deceased. She averred that the only beneficiaries listed in the certificate of confirmation of the Grant of Probate were herself (Mariam Jaffer Hassan), Mohamed Jaffer Ahmed, Ali Jaffer Ahmed, Ahmed Jaffer Ahmed, Fatma Jaffer Ahmed, Khadija Jaffer Ahmed, Aliya Jaffer Ahmed and Fahlum Jaffer Ahmed. She denied that there was a codicil, stating that the alleged codicil had never been produced, proved, or adopted by the Court and did not form part of the confirmed grant issued on 3rd December 2014.
4. Mariam supported the Notice of Motion dated 27th October 2025, by which Alwiya Jaffer Ahmed and Khadija Jaffer Ahmed sought to be made interested parties. She deposed that, as daughters of the deceased, Alwiya and Khadija could be made interested parties in these proceedings. Mariam further deposed that, as the widow of the deceased, she ranked in priority to the other beneficiaries under section 66 of the Law of Succession Act. She contended that the beneficiaries' consent to the Summons for revocation of the grant was unnecessary, as revocation was a matter of law.
5. There was a further joinder application dated 24th October 2025 seeking to add Swabra Ali Jaffer as an interested party. The application was not opposed and was allowed on 25th November 2025. Similarly, the application dated 27th October 2025 seeking to add Alwiya Jaffer Ahmed and Khadija Jaffer Ahmed as interested parties was allowed by consent. Thus, at present, the only joinder application pending determination is that of Mohsin Omar Jaffer.
6. The application by Mohsin Omar Jaffer, dated 17th October 2025, was canvassed through written and oral submissions. The submissions of Mr Mohsin, filed by his advocates, Oluga & Co. Advocates, are dated 17th November 2025. His counsel averred that there was a codicil to the deceased's will naming Mohsin as a beneficiary of the estate in place of his father. It was contended that the codicil was recognised as valid under Islamic Law by the Kadhi's Court, Malindi, in Malindi Succession Cause No 3 of 2018. Counsel submitted that the estate of Mohsin's father was closely intertwined with that of the deceased and that his input would be necessary in administering the deceased's estate.
7. Counsel relied on the case of Kibiwott v Bartocho & another [2025] KEHC 4725 (KLR) and prayed that the Court allow the application.
8. On the other hand, the advocates for Mariam Ahmed Hassan, Fathi Ali & Co. Advocates, filed written submissions dated 20th November 2025. The said counsel identified the issues for determination as follows:
i. Whether the applicant had standing to seek to be joined as an interested party;
ii. Whether the revocation of the grant entitles a non-beneficiary to be added as an interested party;
iii. Whether the codicil confers any enforceable rights to the applicant; and
iv. Whether the foreign letters of administration confer any automatic recognizable rights over a Kenyan estate.
9. Regarding the issue of locus, it was urged that the certificate of confirmation of grant dated 3rd December 2014 conclusively identified the beneficiary of the estate of the deceased. It was contended that the name of the applicant, Mohsin, did not appear nor had he been recognized at any stage of the proceedings, relying on the case of the In re Estate of M’mwongo Kichiu (Deceased) [2025] KEHC 2958 (KLR), counsel for Mariam submitted that since Mohsin lacked locus, his application was defective.
10. Counsel for Mariam submitted that revocation of the grant on account of the fact that the same had become useless and inoperative does not reopen the estate to new entrants. In support of the said contention, counsel relied on the case of IN THE MATTER OF THE ESTATE OF MWANGI MUGWE ALIAS ELIEZA NGWARE (DECEASED) [2003] KEHC 872 (KLR), where it was held that revocation under section 76 (e) of the Law of Succession Act was to facilitate the substitution of an administrator, not to reopen the estate to new parties or new claims.
11. It was submitted that Mohsin had no demonstrable interest in the estate and therefore could not be added, as he was not a beneficiary, could not claim dependency under section 29 of the Law of Succession Act, nor was he a creditor or had any other legal claim. Counsel urged that a person with a mere emotional, historical, or lineage-based interest was not an interested party under Kenyan law.
12. It was urged that the application was an abuse of the Court process. Counsel contended that just as in Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd [2014]eKLR, the applicant was misusing the Court process for ulterior means. Counsel thus urged that the application for joinder as an interested party be dismissed.
13. I have considered the Notice of Motion application dated 17th October 2025, the responses thereto, and the written and oral submissions of the parties. The issue I must determine is whether Mohsin Omar Jaffer, the son of Omar Jaffer al Beity, can be added to these proceedings as an interested party, or whether the application he filed lacks merit and should be dismissed for want of merit and as an abuse of the process of the court. To make that determination, I must set out the factual background of this matter.
14. The deceased died on 2nd July 2002 at the Aga Khan Hospital. At the time of his death, he had a will dated 25th November 1986. The will appointed his two sons, Mohamed Jaffer and Omar Jaffer, as executors. The will named the following beneficiaries: his brother, Sharif Alwil bin Ahmed; his sisters, Fatma Binti Ahmed and Rukiya Binti Ahmed; his 3 wives, Shife Binti Ali Jaffer, Barka Binti Mubarak Baasbah Batahaf, and Mariam Ahmed Hassan; and his children, Fatma Binti Jaffer, Kanina Jaffer, Mohamed Sharif Jaffar, Omar Sharif Jaffer, Ali Sharif Jaffer, Ahmed Sharif Jaffer, Khadija Binti Jaffer, Fadhlum Binti Jaffer and Alwiya Binti Jaffer. The will created a Wakf for the benefit of the Sharif Mosque in Mbale, Uganda.
15. Petition for grant of probate of the written will of the deceased was filed in this Court. Upon the will being proved, the probate of the will of the deceased was issued to Ahmed Jaffer and Ali Jaffer Ahmed of P. O. Box 84410, Mombasa. The probate of the will was confirmed on the said date. The beneficiaries were named as Mariam Jaffer Ahmed, Mohamed Jaffer Ahmed, Ali Jaffer Ahmed, Ahmed Jaffer Ahmed, Fatma Jaffer Ahmed, Khadija Jaffer Ahmed, Alwiya Jaffer Ahmed and Fadhlum Jaffer Ahmed.
16. It is not in dispute that Mohsin is the son of Omar Jaffer and that Omar Jaffer predeceased his father (the deceased herein). According to the will of the deceased, all the residue of the deceased's property (after providing for the brother, 2 sisters, and the Wakf for Sharif Mosque in Mbale) was to go to his 3 wives, Shife Binti Ali Jaffer, Barka Binti Mubarak Baasbah Batahaf, and Mariam Ahmed Hassan; and his children, Fatma Binti Jaffer, Kanina Jaffer, Mohamed Sharif Jaffar, Omar Sharif Jaffer, Ali Sharif Jaffer, Ahmed Sharif Jaffer, Khadija Binti Jaffer, Fadhlum Binti Jaffer and Alwiya Binti Jaffer and be distributed to them according to Islamic Sharia.
17. The deceased person was a Muslim. Under Section 2(3) of the Law of Succession Act, the law governing the devolution of his estate is the Muslim law.
18. With the foregoing background, can Mohsin be added as an interested party to these proceedings? The test for joinder of an interested party was settled by the Supreme Court of Kenya in the case of Francis Karioko Muruatetu & another v Republic & 5 others [2016] eKLR. The Court outlined the test as being:
1. Whether the person seeking to be joined has a personal interest or stake in the matter. Was the alleged interest clearly identifiable, proximate enough, and not merely peripheral? and
2. What prejudice would he suffer if there were non-joinder?
19. Although the above test is more applicable to constitutional matters, it still guides succession proceedings mutatis mutandis. In this case, Mohsin is the son of a named beneficiary of the deceased’s estate, entitled to a share under Islamic law. In my view, his father’s stake is clearly identifiable, sufficiently proximate, and not merely peripheral.
20. Regarding prejudice, it is my view that the beneficiaries of the estate of Omar Jaffer may lose whatever entitlements they are supposed to receive under the will or the alleged codicil if the applicant is not added. The prejudice, in my view, is real, clear and present. That being the case, it would be in the interests of justice to add him so that he can represent his family’s interests. Whether the certificate of Confirmation of Grant dated 3rd December 2014 precludes the family of Omar Jaffer, or whether there was a codicil to the will that gave Mohsin an interest in the estate of the deceased, are issues that can be ventilated before the Family Court, and a just decision, that will no doubt be rendered, will accord with the ethos of justice under Islamic law. But to make his case, Mohsin must first be at the table where the deceased's unadministered assets and their fate are being considered.
21. Further, I must add that ordinarily a child can inherit from his grandfather where the father is deceased. I am guided by the decision of Musyoka, J in the case of In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR) where the learned judge stated as follows:-
“Under Part V, grandchildren have not right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”
22. What the foregoing demonstrates is that the application by the proposed interested party is not idle. It certainly has merit. It is not an abuse of the Court process as submitted by counsel for Mariam. In the circumstances, I allow the Notice of Motion dated 17th October 2025 as prayed. As a result, Mohsin Omar Jaffer is hereby added to these proceedings as an interested party.
23. On costs, I order that each party shall bear its own costs of the application.
24. It is so ordered.
Dated and signed in Nairobi this 15th day of April 2026. Delivered virtually through Microsoft TEAMS.